Commentary Law and Policy

For Its Orchestrators, Campaign to Attack Planned Parenthood More Legal Trouble Than It Was Worth

Imani Gandy

The actions of the "Human Capital" project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But for those behind the project, it may prove to be more legal trouble than it was worth.

Read more of our articles on the Colorado Springs Planned Parenthood shooting here.

After 30 months of effort, anti-choice activist David Daleiden claimed to have definitive proof that Planned Parenthood was in the grisly business of harvesting fetal “body parts” and profiting from their sale. This operation, which Daleiden dubbed the “Human Capital” project, was going to be what finally shut down the behemoth reproductive health-care provider. Conservative websites galore gloated that it would be the final nail in Big Abortion’s coffin.

On July 14, Daleiden released his first video, igniting a firestorm across social media. More than five months have now passed. The actions of the Human Capital project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But—in part because of these consequences—for those behind the project, it may prove to be more legal trouble than it was worth.

In Daleiden’s footage, actors posing as officers of a fake tissue procurement company he created called BioMax appear to be haggling with top Planned Parenthood officials regarding the cost of purchasing fetal tissue—or, as Daleiden put it, “baby parts.”

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There’s nothing illegal about fetal tissue donation programs. The law permits recouping reasonable costs associated with its transport, processing, preservation, quality control, and storage. And nothing in the videos demonstrated that Planned Parenthood was doing otherwise. But because they were heavily edited to make it look like Planned Parenthood officials are using the profits from fetal tissue to buy Lamborghinis and drink expensive wine—and because when it comes to abortion rights, sense and logic are often discarded in favor of inflammatory rhetoric—the videos immediately went viral. The hashtag #PPSellsBabyParts trended on Twitter for days. Lawmakers on a state and federal level rushed to attempt to defund Planned Parenthood, with senators most recently voting to do so last Thursday night as part of an Obamacare repeal. In addition, Planned Parenthood announced that it would no longer accept reimbursement for tissue donation.

As the scandal drags on, however, not a shred of evidence has been produced to suggest that Planned Parenthood broke any state or federal laws in connection with its fetal tissue donation programs.

None of the states that began investigations into Planned Parenthood have found any suggestion of nefarious activity. Federal lawmakers haven’t had much luck, either, despite multiple hearings conducted by different congressional committees. Though House Republicans announced in early October that they would be forming a Benghazi-like special committee to continue an investigation into Planned Parenthood, any possibility that the organization will be found to be in violation of policies regarding fetal tissue donation seems to be flickering out.

What remains, then, are questions about whether or not David Daleiden himself and the organizations he created—CMP and BioMax Procurement Services, the fake tissue procurement company—broke federal and state laws in connection with their crusade against Planned Parenthood, and who coordinated with Daleiden to perpetrate this alleged fraud.

These questions have been teed up in federal court in San Francisco, where a discovery battle has been raging between the National Abortion Federation (NAF) and Daleiden for several months.

“Discovery” is the process in litigation whereby parties to a lawsuit have to, essentially, lay their cards on the table and turn over information that the other side might need to support their claims or defense. And in the lawsuit that NAF filed against CMP, discovery is the process that could unravel a conspiracy involving multiple players all acting in concert to take down Planned Parenthood. Such players may include anti-choice extremists connected to groups like Live Action and Operation Rescue, in addition to some of the anti-choice politicians who jumped at the opportunity to hold congressional hearings and form investigative committees about Planned Parenthood’s supposed dastardly deeds.

But NAF’s lawsuit is about more than CMP’s cynical effort to undermine rights by attacking one of the largest providers of reproductive health care. It is also about NAF’s members—Planned Parenthood affiliates and independent providers who battle incredible odds just to be able to provide a legal health-care service, and the professional association that takes seriously its job of providing a safe space where those providers can meet without fear of harassment.

As outlined in painstaking detail in NAF’s complaint, these providers, many of whom are under constant threat of domestic anti-choice terrorism, often rely on NAF to maintain a shroud of secrecy over its meetings and events so that these providers can feel safe there.

The necessity for such security measures has become obvious in the wake of Daleiden’s scheming. According to NAF court filings, reported incidents of harassment against Planned Parenthood clinics increased ninefold in July, as compared to June. Reported incidents of harassment were even more numerous in August. And in late November, Robert Lewis Dear Jr. was arrested for killing three people and wounding nine others at a Planned Parenthood clinic in Colorado Springs. “No more baby parts,” is what he reportedly said when interviewed after his capture.

Indeed, in September, the FBI warned that there would be “an uptick in attacks on reproductive health care facilities.” As reported by CBS, investigators have tied that uptick directly to CMP’s smear campaign.

So when CMP published footage accusing Planned Parenthood and other NAF members of trafficking in the sale of black-market “fetal body parts,” NAF set about stopping CMP from releasing any more videos that might prove dangerous for its members.

Thus far, NAF’s efforts have been successful.

Within weeks of the first video release, NAF filed a lawsuit in federal court against CMP, BioMax, David Daleiden, Troy Newman (the founder of radical anti-choice extremist group Operation Rescue), and a number of thus far unidentified alleged other parties. Among other civil and criminal allegations, the lawsuit alleges a conspiracy to defraud NAF, perpetrated for the purpose of intimidating and harassing abortion care providers.

Days after NAF filed its lawsuit, it won a temporary restraining order (TRO) blocking CMP from releasing additional footage or other materials that NAF alleges CMP fraudulently acquired at NAF meetings. The judge who issued the temporary restraining order, William Orrick, also ordered CMP and Daleiden to provide responses to NAF’s discovery requests: testimony, documents, and other evidence that NAF needs in order to prove its case that the temporary restraining order should be converted into a preliminary injunction continuing to block the video release.

The most important information sought by NAF is probably the video recordings themselves, many of which were surreptitiously recorded at private NAF events in violation of the explicit nondisclosure agreement that CMP members were required to sign before they could gain entrance into NAF’s annual meetings in 2014 and 2015. The confidentiality agreements are one piece of an extensive security protocol that NAF put in place to protect attendees from anti-choice terrorism.

Daleiden and CMP maintain that the TRO and any preliminary injunction that the court might issue constitutes “prior restraint,” or pre-publication censorship, in violation of the First Amendment. Daleiden believes that the confidentiality agreement that he signed is invalid because in his mind, NAF is an accomplice in Planned Parenthood’s baby parts trafficking scheme.

NAF has countered, and thus far Judge Orrick seems to agree, that First Amendment rights can be waived by contract, which is exactly what Daleiden did. And considering that no federal or state agency has found Planned Parenthood guilty of anything, Daleiden’s continued insistence that he’s an investigative journalist on a crusade to expose the illegal sale of aborted fetal tissue has begun to ring rather hollow.

If the only reason NAF was suing CMP and Daleiden was to make sure that no more video footage containing NAF’s sensitive information is released, Daleiden might be able to rest easy. Although his exposé has fallen apart, leaving a trail of anti-choice violence and tragic destruction in its wake, he and his cohorts might have been able to escape any criminal and civil liability by choosing to not publish any more videos.

But no such luck for him. NAF wants more than just the video footage.

NAF wants to know exactly how Daleiden and CMP perpetrated the operation: who was involved, who infiltrated NAF’s meetings, who funded the project, and who received reports on CMP’s activities. Daleiden and CMP have been desperately trying to avoid providing that information to NAF, which raises questions about what they are trying to hide or who they are trying to protect.

CMP and Daleiden have tried several gambits in their attempts to thwart NAF’s effort to obtain discovery, including pleading the Fifth Amendment as a blanket objection to the information requests. Judge Orrick has swatted them down at every turn, ordering for them to release the information.

Somewhere in those documents is information that CMP and Daleiden would prefer remain undisclosed, including the identity of CMP’s donors and the names of politicians, if any, with whom CMP may have colluded in its effort to take down Planned Parenthood, or who knew about the CMP operation months before the first video was published.

Also contained in the testimony and documents that CMP and Daleiden have been fighting to keep secret are the names of Daleiden’s associates and accomplices—the individuals who infiltrated NAF’s annual meetings under false pretenses. That information may lead to more juicy revelations about which, if any, anti-choice politicians, front groups, or political action committees can be tied to CMP’s smear campaign.

Several Republican politicians have copped to viewing some of the footage long before the videos were publicly released.

Rep. Trent Franks (R-AZ) admitted that he had first seen the video about a month before it was released. When asked why he did nothing about it at the time, he said, “The hope was to have as much information as possible so that the authorities could be notified effectively before the media.”

Rep. Tim Murphy (R-PA), who is a member of the House Pro-Life Caucus and chairman of the Energy and Commerce subcommittee that is investigating the videos, said in a press conference that he had seen the footage weeks prior to its release. After the press conference, CQ Roll Call asked Rep. Murphy why he had waited to mention the video’s existence. After fumbling for an answer, Murphy ended the interview, asked that he not be quoted, and said, “This interview didn’t happen.”

This in and of itself has raised some eyebrows: The fervor with which these politicians have decried the murder of “babies” and the “harvesting” of their “parts” would suggest that as soon as they became aware of Planned Parenthood committing such horrors in facilities around the country, they would have sprung into action.

But they didn’t.

Instead they waited until the Republicans could use a budget showdown as leverage to pursue their vendetta against Planned Parenthood.

If these politicians actively coordinated with Daleiden and CMP, who may have violated numerous federal and state laws, including creating fake identification and secret videotaping, they may not want their identities revealed in connection with NAF’s lawsuit. But NAF and its attorneys have been determined to ferret them out.

And they may have finally gotten their chance. After months of stalling, CMP and Daleiden were ordered to provide to NAF the identities of the “handful of supporters” that were “intimately involved in the planning and funding of the Center’s alleged conspiracy.” On Saturday evening, after their appeal was rejected by the Ninth Circuit and then the Supreme Court, CMP and Daleiden finally complied, according to sources at NAF. The information they gave is under protective order. The court may decide it should be public, but has not yet.

Given the ongoing troubles Daleiden and CMP face in federal court, it’s hard not to conclude that the Human Capital project may have been more trouble for them than it was worth.

Thus far, 11 videos have been released, and while they have riled up anti-choice advocates, so far, no government agency has been able to make any accusation against Planned Parenthood stick. Moreover, public opinion about Planned Parenthood actually improved after CMP began publishing its heavily edited videos.

Evidence suggests that even if CMP and Daleiden can manage to avoid being permanently blocked from releasing any more video footage recorded at NAF meetings, the footage won’t be the end of Planned Parenthood as they had hoped.

Despite the TRO, additional footage found its way on to the Internet thanks to Internet troll and disgraced blogger Chuck C. Johnson, and notorious hacker Andrew “Weev” Auernheimer. Johnson first claimed that the leak came from Congress, but then changed his story and claimed he received the footage from an anonymous person with the user name “patriotgeist.”

But those leaks don’t seem to be advancing the Human Capital project’s agenda, at least not with the current presidential administration in office. Earlier this month, the Senate, after multiple attempts, managed to pass a bill repealing the Affordable Care Act and defunding Planned Parenthood, but that will almost certainly be vetoed by President Obama. And each state that Planned Parenthood has sued after those states cut off the health-care organization’s funding has been ordered to reinstate the funding.

So ultimately, what was the point of this project? To inflame those who already hate Planned Parenthood? To rile up gullible people who think despite all evidence to the contrary, that Planned Parenthood is murdering babies for parts? If so, mission accomplished. But I imagine Daleiden had bigger hopes for this project—like destroying Planned Parenthood altogether. Thus far, those hopes are not panning out. And instead, Daleiden and others involved with CMP could face major consequences, including jail time.

All that remains to be seen is what Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.

We’ll have to wait and see when those names are made public.

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